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SVP – Postdisposition: Supervised Release – Reconsideration – Newly Discovered Evidence – Assessment of Pre-Existing Information

State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07, may be based on newly discovered evidence, § 805.13, ¶11; but:

¶16. There is absolutely no new information contained in the periodic re-examination report. The report is simply Dal Cerro’s assessment of pre-existing information, the same information utilized by Lytton [expert at § 980.08 proceeding]. Merely recycling and reformulating existing information into a new format does not generate new evidence. Newly discovered evidence does not include a ‘new appreciation of the importance of evidence previously known but not used.’ State v. Fosnow, 2001 WI App 2, ¶9, 240 Wis. 2d 699, 624 N.W.2d 883 (citation omitted).¶17. Our holding here is supported by a recent case, State v. Slagoski, 2001 WI App 112, where we held that the existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. Id. at ¶11. As we stated in Slagoski, a contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. Id. The State has failed to differentiate the psychiatric evidence available at the time of Lytton’s report from Dal Cerro’s report. Dal Cerro’s report was nothing more than the newly opined importance of existing evidence.

The court goes on to also find a lack of diligence stressing WRC’s refusal to cooperate with the expert on the release petition:

¶21. The State and WRC staff seem to forget that at a hearing for supervised release, the burden of proof lies with them, not Williams. Williams does not have to prove that he is cured; the State must prove that Williams continues to be a sexually violent person and that it is substantially probable that he will engage in acts of sexual violence if he is not continued in institutional care. Wis. Stat. § 980.08(4). The refusal of WRC to cooperate with the independent evaluation by Lytton perhaps frustrated the State’s objectives. In any event, if WRC wanted the trial court to be aware of Dal Cerro’s opinion, WRC staff should have cooperated with Lytton. Again, the test to determine if evidence is newly discovered is not what counsel knows or is aware of, but what the client, here WRC, is or should be aware of. Kocinski, 147 Wis. 2d at 744. At the time of Lytton’s evaluation, WRC had in its possession all of the information contained in Dal Cerro’s report. It cannot slide this information in the back door after it refused to contribute to Lytton’s § 980.08 evaluation. Wisconsin Stat. § 805.15(3) cannot be used as a cure for inadequate preparation. Kocinski, 147 Wis. 2d at 744.)

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